Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: James F. Cleary, D.D.S., Petitioner,
- v. -
The Inspector General.
DATE: March 3, 1993
Docket No. C-92-107
Decision No. CR252
DECISION
On May 11, 1992, the Inspector General (I.G.) notified Petitioner that he was
being excluded from
participation in the Medicare and State health care programs. 1/ The I.G. told
Petitioner that he was being
excluded from participation in Medicare pursuant to sections 1128(b)(14) and
1892 of the Social Security
Act (Act). The I.G. informed Petitioner that he was being excluded from participation
in Medicaid
pursuant to section 1128(b)(14) of the Act. The I.G. further informed Petitioner
that he was being
excluded because he had failed to repay his Health Education Assistance Loans
(HEALs) or to enter into
an agreement to repay the loans. The I.G. advised Petitioner that he would be
excluded until his debt had
been satisfied completely.
Petitioner requested a hearing, and the case was assigned to me for a hearing
and a decision. Shortly after
the case was assigned to me, Petitioner informed me that he was attempting to
negotiate a settlement of the
case, and requested that the proceeding be stayed. In my Order of August 17,
1992, I stayed the
proceeding until further notice and gave the parties until September 31, 1992
to report any developments to
me. However, Petitioner eventually advised me that he had been unable to negotiate
a settlement, and
requested that the case be set for a hearing. I conducted a prehearing conference
on October 30, 1992 at
which time I scheduled an in-person hearing in this case for February 23, 1993.
At the prehearing conference, counsel for the I.G. argued that this case was
appropriate for summary
disposition. Accordingly, in my Order and Notice of Hearing dated November 21,
1992, I set out the
schedule that the parties had agreed to for summary disposition. My November
21 Order also established
discovery deadlines, exchange dates for exhibit and witness lists and proposed
exhibits, and a hearing date,
in the event that I decided there were disputed issues of material fact.
The I.G. filed his motion for summary disposition on November 6, 1992. Petitioner
filed a statement in
response to the I.G.'s motion. On January 11, 1993, I conducted an oral argument
on the motion, by
telephone. The parties advised me at that time that their presentations were
complete and that neither of
them desired an in-person hearing. On January 27, 1993, on the basis of those
representations and the
parties' submissions, I ruled that there did not exist disputed issues of material
fact and that the case could
be decided without an in-person hearing. In my January 27, 1993 ruling, I admitted
into evidence
Petitioner's response and the attachments to the I.G.'s motion for summary disposition.
2/
Subsequent to my January 27, 1993 ruling, I received notice that the Secretary
had amended the
regulations. The amendment, found at 58 Fed. Reg. 5617 - 18, was effective as
of its January 22, 1993
date of publication, and established, in relevant part, that the criteria used
by the I.G. in determining to
impose and direct exclusions pursuant to section 1128(b)(14) of the Act are
to be applied as a standard of
review of exclusion determinations at administrative hearings. On February 1,
1993, I sent a letter to the
parties. In that letter, I established a briefing schedule that allowed the
parties the opportunity to address
the issues of the applicability and effect of the regulations. Both parties
agreed that I should apply the
criteria in reaching my decision in this case.
I have carefully considered the evidence that the parties submitted, their
arguments, and the applicable law
and regulations. I conclude that I lack authority to adjudicate the I.G.'s exclusion
of Petitioner from
participating in Medicare which the I.G. imposed pursuant to section 1892 of
the Act. I conclude further
that the I.G. had authority pursuant to section 1128(b)(14) of the Act to exclude
Petitioner from
participating in Medicare and Medicaid. Finally, I conclude that the term of
the exclusion imposed
pursuant to section 1128(b)(14) is reasonable. However, I premise my conclusion
that the term of the
exclusion imposed pursuant to section 1128(b)(14) is reasonable on the I.G.'s
representation to me that,
under the exclusion imposed pursuant to section 1128(b)(14), Petitioner will
be eligible to apply for
reinstatement to Medicare and Medicaid at such time as the Public Health Service
(PHS) notifies the I.G.
that either Petitioner's HEAL default is cured or that Petitioner's indebtedness
has been resolved to the PHS'
satisfaction. 42 C.F.R. 1001.1501(b) (1992).
ISSUES
The issues in this case are whether:
1. I have authority to adjudicate the exclusion which the I.G. imposed pursuant
to section
1892 of the Act.
2. The I.G. had authority to exclude Petitioner pursuant to section 1128(b)(14) of the Act.
3. The term of the exclusion imposed pursuant to section 1128(b)(14) of the
Act is
reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On December 30, 1983, Petitioner applied for a HEAL in the amount of $7,500
to enable him to pursue
an education in dentistry. I.G. Ex. 4.
2. On February 24, 1984, Petitioner received approval for a HEAL in the amount of $6,609. I.G. Ex. 4.
3. On March 4, 1984, Petitioner executed a promissory note in which he promised
to repay the HEAL.
I.G. Ex. 5.
4. In promising to repay the HEAL, Petitioner agreed to make payments beginning
on the first day of the
tenth month after he ceased being a full-time student at a HEAL-recognized school,
or an intern or resident
in an approved program. I.G. Ex. 5.
5. In promising to repay the HEAL, Petitioner agreed that he would be required
to repay it in not less than
10 years, or more than 25 years, and that he would make annual payments of at
least the annual interest on
the unpaid balance of the HEAL. I.G. Ex. 5.
6. In promising to repay the HEAL, Petitioner agreed that, in the event of
his default, the entire unpaid
loan, including interest due and accrued, would, at the option of the holder,
become immediately due and
payable. I.G. Ex. 5.
7. In 1985, Petitioner applied for and received a second HEAL in the amount of $7,000. I.G. Ex. 6
8. Petitioner promised to repay the second HEAL on terms and conditions identical
to those on which his
original HEAL was conditioned. I.G. Ex. 7; Findings 4 - 6.
9. In 1986, Petitioner received a third HEAL in the amount of $3,689. I.G. Ex. 8, 9.
10. Petitioner promised to repay the third HEAL on terms and conditions identical
to those on which his
first two HEALs were conditioned. I.G. Ex. 9; Findings 4 - 6, 8.
11. The Student Loan Marketing Association (SLMA) purchased Petitioner's promissory
notes for the
three HEALs and received an assignment of the lenders' rights under these notes.
I.G. Ex. 12, 40.
12. Petitioner was granted a deferment until July 1, 1987 from his obligation
to repay his HEALs, based
on his representation that he would be participating in a dentistry internship
until that date. I.G. Ex. 10.
13. In November 1987, Petitioner was provided with a repayment schedule for
his HEALs, and was told
that his repayment obligation would commence on February 6, 1988. I.G. Ex. 40.
14. Petitioner made no repayments pursuant to this repayment schedule. I.G. Ex. 11, 12, 40.
15. On January 26, 1988, Petitioner filed a voluntary bankruptcy petition. I.G. Ex. 11.
16. On February 16, 1988, SLMA assigned to PHS its claim against Petitioner
for nonpayment of the three
HEALS. I.G. Ex. 13.
17. On April 27, 1988, the bankruptcy court entered an order which discharged
Petitioner from
bankruptcy, but which did not discharge Petitioner from his obligation to repay
the three HEALs. I.G. Ex.
12, 14.
18. On March 11, 1988, PHS advised Petitioner that SLMA had assigned to PHS
its rights to repayment of
the three HEALs. I.G. Ex. 15.
19. On March 11, 1988 PHS solicited financial information from Petitioner. I.G. Ex. 15.
20. In an undated letter, Petitioner responded to PHS by advising it that he
was unable to repay the
HEALs, and inquiring as to whether it was possible for him to repay his debt
by providing health care to
the needy. I.G. Ex. 16.
21. On May 11, 1989, PHS advised Petitioner that funds did not exist to employ
him as a dentist. PHS
offered to negotiate repayment terms of Petitioner's HEALs with Petitioner.
I.G. Ex. 18.
22. On June 20, 1989, PHS offered Petitioner an agreement to repay his HEAL
indebtedness at the rate of
$313 per month. I.G. Ex. 20.
23. PHS based its June 20, 1989 offer to Petitioner on its calculation that
Petitioner's total indebtedness on
his HEALs as of June 30, 1989 (including unpaid principal and interest) would
be $27,587.96. I.G. Ex. 20.
24. In an undated letter, Petitioner responded to PHS by advising it that he
would not be able to meet his
subsistence expenses if he accepted the terms of the repayment offer. I.G. Ex.
21.
25. In responding to PHS' offer to establish a payment schedule for repayment
of the HEALs, Petitioner
did not deny that he was indebted to PHS in the amount which PHS had calculated
as the unpaid principal
and interest on the HEALs. I.G. Ex. 21.
26. On January 29, 1990, PHS advised Petitioner that his total indebtedness
on the HEALs was
$29,200.87. I.G. Ex. 23.
27. Petitioner responded to PHS on February 20, 1990, advising it that he had
been unable to produce
sufficient income to repay his HEAL indebtedness. I.G. Ex. 24.
28. On February 20, 1990, Petitioner advised PHS that he would be interested
in entering into a repayment
agreement with PHS. I.G. Ex. 24.
29. On April 4, 1990, PHS advised Petitioner that his HEAL indebtedness as
of April 6, 1990 would total
$29,947.02. I.G. Ex. 27.
30. On September 27, 1990, PHS informed Petitioner that his debt would be referred
to the Internal
Revenue Service for collection. It advised Petitioner, that, as of that date,
the total amount of Petitioner's
HEAL indebtedness was $31,162.44. I.G. Ex. 29.
31. On November 1, 1990, Petitioner told PHS that he was unable to repay his
HEAL indebtedness. He
offered to repay the indebtedness by providing services to the United States
Government. I.G. Ex. 30.
32. On November 23, 1990, PHS offered Petitioner the opportunity to repay his
HEAL indebtedness
pursuant to a minimum payment schedule of $350 per month. I.G. Ex. 32.
33. PHS advised Petitioner that, as of November 23, 1990, his HEAL indebtedness
totalled $32,071.94.
I.G. Ex. 33.
34. Petitioner did not respond to PHS' November 23, 1990 offer to enter into
a loan repayment agreement.
3/
35. On June 20, 1991, PHS notified Petitioner that it had referred his HEAL
indebtedness for collection.
I.G. Ex. 34.
36. On July 2, 1991, Petitioner advised the collection agency that his income
was insufficient to meet his
expenses. I.G. Ex. 35.
37. On July 2, 1991, Petitioner sent PHS a copy of his July 2, 1991 letter
to the collection agency. He
offered again to repay his outstanding indebtedness through federal service
as a dentist. I.G. Ex. 35, 36.
38. On August 22, 1991, PHS again advised Petitioner that his HEAL indebtedness
would be referred to
the Internal Revenue Service for collection. I.G. Ex. 37.
39. PHS advised Petitioner, that, as of August 22, 1991, his HEAL indebtedness
totalled $34,317.75. I.G.
Ex. 37.
40. On December 12, 1991, PHS advised Petitioner that his indebtedness had
increased to $35,197.55.
I.G. Ex. 38.
41. On December 12, 1991, PHS advised Petitioner that he could repay the outstanding
indebtedness by
negotiating a repayment agreement or by having his Medicare and/or Medicaid
reimbursements directly
forwarded to PHS to be applied to his indebtedness. I.G. Ex. 38.
42. On December 12, 1991, PHS advised Petitioner that if he failed to enter
into a repayment agreement,
or failed to agree to having his Medicare and/or Medicaid reimbursements forwarded
to PHS, the matter
would be referred to the I.G. for possible exclusion of Petitioner from participating
in Medicare and
Medicaid. I.G. Ex. 38.
43. Petitioner did not respond to PHS' December 12, 1991 communication to Petitioner.
See footnote 4,
infra.
44. On May 11, 1992, the I.G. excluded Petitioner from participating in Medicare
and directed that he be
excluded from participating in Medicaid. I.G. Ex. 1.
45. As of May 11, 1992, Petitioner had not made payments on his HEAL debt nor
had he entered into an
agreement with PHS to repay his HEAL debt. I.G. Ex. 1, 40.
46. The I.G. excluded Petitioner from participating in Medicare pursuant to
sections 1128(b)(14) and 1892
of the Act. I.G. Ex. 1.
47. The Secretary of the United States Department of Health and Human Services
(Secretary) has not
delegated to administrative law judges of the Departmental Appeals Board (DAB)
the authority to hear and
decide requests for hearings concerning exclusions imposed pursuant to section
1892 of the Act.
48. I do not have authority to hear and decide Petitioner's request for a hearing
concerning his exclusion
from participating in Medicare which the I.G. imposed pursuant to section 1892
of the Act.
49. Petitioner's HEAL debt is an indebtedness on loans in connection with health
professions education
which have been secured by the Secretary. Findings 1 - 48; Social Security Act,
section 1128(b)(14).
50. The Secretary has taken all reasonable steps available to her to secure
repayment from Petitioner of his
HEAL debt. Findings 19 - 48; Social Security Act section 1128(b)(14).
51. The Secretary delegated to the I.G. the authority to determine, impose,
and direct exclusions pursuant
to section 1128 of the Act. 48 Fed. Reg. 21,662 (1983).
52. The I.G. had authority to impose and direct an exclusion pursuant to section
1128(b)(14) of the Act.
Findings 19 - 49.
53. Regulations published on January 29, 1992 establish criteria to be employed
by the I.G. in determining
to impose and direct exclusions pursuant to section 1128(b)(14) of the Act.
42 C.F.R. Part 1001 (1992).
54. A January 22, 1993 amendment to the regulations provides that the criteria
to be employed by the I.G.
in determining to impose and direct exclusions pursuant to section 1128(b)(14)
of the Act apply also as a
standard for review of exclusion determinations at the level of the administrative
hearing.
55. The parties have agreed that the criteria for me to use in determining
the reasonableness of the
exclusion imposed and directed by the I.G. should be that found in 42 C.F.R.
1001.1501, and that is the
criteria I have used.
56. An exclusion imposed pursuant to section 1128(b)(14) of the Act is reasonable
if the excluded party is
excluded until such time as PHS notifies the I.G. that the default has been
cured or the obligations have
been resolved to the PHS' satisfaction. 42 C.F.R. 1001.1501(b) (1992).
57. The exclusion imposed against Petitioner pursuant to section 1128(b)(14)
of the Act was intended by
the I.G. to exclude Petitioner until such time as PHS notifies the I.G. that
Petitioner's default of his HEAL
debt has been cured or that his HEAL debt has been resolved to the PHS' satisfaction.
58. The exclusion which the I.G. imposed against Petitioner pursuant to section
1128(b)(14) of the Act is
reasonable. Findings 1 - 57.
ANALYSIS
Petitioner applied for and received three HEALs while he was a dentistry student.
He graduated from
dental school in 1986, but received a deferment of his obligation to begin repaying
his HEAL debt until
July 1, 1987 so that he could continue his dentistry studies. Beginning in July
1987 the holder of
Petitioner's promissory notes made unsuccessful efforts to secure repayment
from Petitioner. Eventually,
the loans were assigned to PHS. PHS unsuccessfully attempted to obtain repayment
from Petitioner. On
two occasions, PHS offered to enter into repayment agreements with Petitioner,
and Petitioner either
rejected the proposed agreements or failed to respond to PHS' offer. On more
than one occasion, Petitioner
offered to work off his HEAL debt by providing dental services on behalf of
the United States
Government. However, PHS was unable to employ Petitioner as a government dentist
and did not accept
Petitioner's offer. Also, PHS offered Petitioner the opportunity to repay his
HEAL debt by assigning
Medicare and Medicaid reimbursement claims to PHS. This offer was not accepted
by Petitioner.
The impasse continued until May 1992, when the I.G. excluded Petitioner under
sections 1128(b)(14) and
1892 of the Act. Petitioner never denied the existence of or the amount of his
HEAL debt, which
continued to increase as unpaid interest accrued. However, at no time from July
1, 1987 until the date of
his exclusion did Petitioner repay any of his HEAL debt. Despite many communications
between PHS and
Petitioner, PHS was unable to secure a repayment agreement from Petitioner which
would have resolved,
or reduced, his debt.
Petitioner does not dispute these facts. He contends, however, that at no time
between July 1987 and the
date of his exclusion was he able to make repayment of even a part of his HEAL
debt. In his many
communications with PHS, Petitioner asserted consistently that his income and
expenses have been
insufficient to permit him to repay his debt. Petitioner contends now that the
effect of an exclusion will be
to deprive him of the opportunity to earn income which could be used to repay
his HEAL debt. Petitioner
continues to assert that his debt can be resolved only by some form of government
employment under
which his services could be credited towards repayment of his HEAL obligation.
1. I do not have authority to decide whether the I.G. can exclude Petitioner
under section 1892 of
the Act, or to decide whether an exclusion imposed under section 1892 is reasonable.
A threshold issue in this case is whether I have jurisdiction over the I.G.'s
exclusion of Petitioner from the
Medicare program pursuant to section 1892 of the Act. I conclude that I do not
have authority delegated to
me by the Secretary to hear and decide cases involving exclusions imposed under
section 1892. Therefore,
I make no findings as to whether the I.G. was authorized to impose an exclusion
against Petitioner under
section 1892, or whether the exclusion which the I.G. imposed is reasonable.
Section 1892(a)(1)(A) of the Act directs the Secretary to enter into a repayment
agreement with any
individual who, by reason of a breach of a contract entered into with entities
including the HEAL program,
owes a past-due obligation to the United States. Section 1892(a)(3)(B) of the
Act provides that if such an
individual refuses to enter into a repayment agreement or breaches any provision
of a repayment
agreement, the Secretary shall immediately exclude such individual from participating
in Medicare.
There is no language in section 1892 which confers administrative hearing rights
on individuals and
entities who are excluded pursuant to section 1892(a)(3)(B), nor do there exist
regulations which confer
such rights. I am unaware of any delegation of authority by the Secretary to
the Departmental Appeals
Board (DAB) or to administrative law judges to provide hearings to individuals
excluded pursuant to
section 1892(a)(3)(B). Nor have the parties agreed to be bound by a decision
of mine on the exclusion
under section 1892 of the Act. In the absence of such authority, I cannot hear
cases involving exclusions
imposed pursuant to this section.
2. The I.G. had authority under section 1128(b)(14) of the Act to exclude Petitioner
from participating in
Medicare and Medicaid.
Section 1128(b)(14) of the Act provides that the Secretary (or her delegate,
the I.G.) may exclude a party
from participating in Medicare or Medicare who:
is in default on repayments of scholarship obligations or loans in connection
with health professions
education made or secured, in whole or in part, by the Secretary and with respect
to whom the Secretary
has taken all reasonable steps available to the Secretary to secure repayment
of such obligations or loans, . .
.
There is no dispute in this case that Petitioner's HEAL debt arises from loans
made "in connection with
health professions education." Nor is there any dispute that Petitioner
defaulted on repayment of his HEAL
debt. Therefore, I must find that the I.G. had authority to exclude Petitioner
under section 1128(b)(14) of
the Act, if I conclude that the Secretary (or her delegate, PHS) took "all
reasonable steps available" to
secure repayment from Petitioner of his HEAL debt. 4/
Petitioner did not specifically assert that PHS failed to take all reasonable
steps available to secure
repayment from Petitioner of his HEAL debt. However, his assertion that he has
been unable to repay even
a part of his debt can be construed as an argument that PHS failed to take all
reasonable steps to secure
repayment. I do not accept Petitioner's argument. It is apparent, both from
the law and from the
undisputed material facts of this case, that the Secretary took "all reasonable
steps available" to her to
secure repayment from Petitioner of his HEAL debt, prior to the I.G. excluding
him under section
1128(b)(14).
The statutory term "all reasonable steps available" is not defined
in the Act. However, the meaning of the
term is evident, given its context and Congress' purpose in enacting section
1128(b)(14). Furthermore, the
Secretary has made explicit her interpretation of this section. 42 C.F.R. 1001.1501(a)(2)
(1992). 5/
The intent of Congress in enacting section 1128(b)(14) was in part to provide
the Secretary with a
mechanism by which she could assert some leverage over parties who have defaulted
on HEAL debts. 6/
In assuming Petitioner's HEAL debt, the Secretary acquired the right -- and
the obligation -- also to collect
on that debt. Therefore, section 1128(b)(14) is a debt collection tool, among
other things. The term "all
reasonable steps available" means all reasonable and legitimate means of
debt collection. In attempting to
collect a debt, the Secretary must be "reasonable" only in the sense
that she should not insist on repayment
arrangements which palpably are unfair. "All reasonable steps available"
does not mean, as is suggested by
Petitioner's argument, that the Secretary must excuse individuals from all repayment
obligations based on
their asserted financial status. Nor does it mean that the Secretary must accept
repayment arrangements
which do not accomplish the objective of repayment, or which require the Secretary
to enter into
relationships that are not in the public interest.
The Secretary has interpreted section 1128(b)(14) by regulation. The regulations
enacted on January 29,
1992 provide that "all reasonable steps available" to secure repayment
of a HEAL debt will have been
achieved where PHS offers the debtor a Medicare offset arrangement as required
by section 1892 of the
Act. 42 C.F.R. 1001.1501(a)(2) (1992). Section 1892(a)(2) states in part that
agreements to collect
HEAL debts shall provide that:
(A) deductions shall be made from the amounts otherwise payable to the individual
under . . .
[Medicare], in accordance with a formula and schedule agreed to by the Secretary
and the individual, until
such past-due obligation (and accrued interest) have been repaid.
The several offers of repayment agreements which PHS made to Petitioner in
this case are consistent with
the requirements of the Act and with the Secretary's duty as defined by regulation.
PHS twice offered
Petitioner repayment arrangements which would have extinguished his debt through
monthly installment
payments. The monthly payments required by those proposed arrangements were
the amounts minimally
necessary to repay the principal and interest on the HEALs. The offers were
"reasonable" in that they
would have enabled the Secretary to meet her responsibility to collect Petitioner's
debt in a manner which
would have been minimally onerous to Petitioner. Petitioner's assertion that
he could not have repaid the
HEALs pursuant to these schedules and met his other obligations (which I accept
as true for purposes of
deciding the I.G.'s motion for summary disposition) does not make the offers
unreasonable, because it does
not derogate from the fact that these offers embodied the minimum monthly payments
required to achieve
repayment of the principal and accruing interest on the HEALs. Furthermore,
PHS offered to Petitioner the
opportunity to repay his HEAL debt through a Medicare and Medicaid offset arrangement,
which
Petitioner did not accept. Either of these offers would have discharged the
Secretary's obligation to
Petitioner as is defined by 42 C.F.R. 1001.1501(a)(2).
Petitioner has argued that PHS should have accepted from Petitioner, as an
alternative to its various
repayment offers, an arrangement whereby Petitioner "worked off" his
HEAL debt through federal
employment. Petitioner never specified the details of his proposal, and the
evidence does not establish that
federal jobs exist which would have enabled Petitioner to be employed in such
a manner or position that
would allow him to provide services that could have been applied to reduce his
HEAL indebtedness. In
any event, PHS advised Petitioner that funds did not exist with which to employ
him. I conclude that PHS
was not obligated to offer Petitioner federal employment as a basis for repayment
of his debt. Such an
arrangement is not contemplated by the Act or by regulations. Furthermore, PHS
would under no
circumstance be obligated to accept an arrangement which was not, from its standpoint,
feasible.
3. The exclusion which the I.G. imposed under section 1128(b)(14) of the Act is reasonable.
The notice of exclusion which the I.G. sent to Petitioner advised him that
he would be excluded, both
under sections 1128(b)(14) and 1892 of the Act, until his HEAL debt had been
completely satisfied.
However, the I.G. subsequently stated at a telephone conference on January 11,
1993, that he intended the
exclusion under section 1128(b)(14) to be effective until PHS notifies the I.G.
that Petitioner's default has
been cured or that Petitioner's debt has been resolved to PHS' satisfaction.
The I.G.'s clarification is consistent with the requirements of 42 C.F.R. 1001.1501(b).
I therefore
conclude that the exclusion which the I.G. imposed under section 1128(b)(14)
is reasonable, and I sustain
it. Furthermore, the exclusion is on its face reasonable because it enables
Petitioner to negotiate an
agreement with PHS to repay his HEAL debt. 7/
CONCLUSION
I conclude that the I.G. had authority to exclude Petitioner from participating
in Medicare and Medicaid
pursuant to section 1128(b)(14) of the Act. I conclude further that the exclusion
which the I.G. imposed
pursuant to section 1128(b)(14) is reasonable. I make no findings or conclusions
as to whether the I.G. had
the authority to exclude Petitioner pursuant to section 1892, or whether the
exclusion which the I.G.
imposed pursuant to section 1892 is reasonable.
______________________________
Steven T. Kessel
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
Social Security Act to cover three
types of federally financed health care programs, including Medicaid. Unless
the context indicates
otherwise, I use the term "Medicaid" hereafter to represent all State
health care programs from which
Petitioner was excluded.
2. In my January 27, 1993 ruling, I admitted into evidence Petitioner's November
20, 1992 response to
the I.G.'s motion for summary disposition as Petitioner Exhibit (P. Ex) 1. I
also admitted into evidence the
40 attachments to the I.G.'s motion for summary disposition, as I.G. Exhibits
(I.G. Ex.) 1 through 40.
In a letter dated January 12, 1993, the I.G. presented some additional information
concerning some recent
payments by Petitioner of part of his HEAL debt, evidently in response to a
collection suit by the
Department of Justice. I have marked this letter as I.G. Ex. 41, but I do not
admit it into evidence. I
consider proposed I.G. Ex. 41 to be irrelevant to this case, inasmuch as it
relates neither to the I.G.'s
authority to exclude Petitioner under section 1128(b)(14) of the Act, nor to
the reasonableness of the
exclusion imposed by the I.G.
3. The I.G. averred at pages 7 and 8 of his brief in support of his motion
for summary disposition that
Petitioner had not responded to PHS's November 23, 1990 letter offering him
an opportunity to enter into a
repayment agreement. The I.G. averred also on page 8 of his brief that on Dec.
12, 1991, PHS made a
further communication to which Petitioner did not respond. See Findings 42 and
43. The I.G. offered no
evidence to support these averments. However, Petitioner did not dispute them
at any time during these
proceedings. In the absence of dispute from Petitioner, I accept these averments
of the I.G. as undisputed
material facts.
4. Section 1128(b)(14) provides that the Secretary shall not exclude "a physician" who is:
the sole community physician or sole source of essential specialized services
in a community if a State
requests that the physician not be excluded, and . . . the Secretary shall take
into account, in determining
whether to exclude any other physician pursuant to . . . [section 1128(b)(14)]
access of beneficiaries to
physician services for which payment may be made under . . . (Medicare or Medicaid).
Petitioner has not contended that he is a "physician" within the
meaning of this language. Nor has
Petitioner contended that, as a "physician," he qualifies for the
exception from exclusion provided by
section 1128(b)(14). Finally, Petitioner has not contended that the I.G. failed
to take into account
beneficiaries' access to physician services, in determining whether to exclude
Petitioner.
5. By regulation published on January 22, 1993, the Secretary decreed that
the regulations contained in
42 C.F.R. Part 1001 were binding on administrative law judges and federal judges
as well as the I.G. 42
C.F.R. 1001.1(b); 58 Fed. Reg. 5617 - 18 (1993).
6. Another purpose of section 1128(b)(14) is to protect the integrity of federally
funded health care
programs from providers who demonstrate that they cannot be trusted to deal
with public funds.
7. My conclusion that the exclusion which the I.G. imposed pursuant to section
1128(b)(14) is
reasonable is independent from and has no bearing upon, the issue of whether
the exclusion the I.G.
imposed pursuant to section 1892 is reasonable.